It has been an exhausting, expensive fight yet in the end, the Maine Lobstermen’s Association (MLA) prevailed. On June 16, the U.S. Court of Appeals for the D.C. Circuit ruled 3-0 in favor of the MLA in its legal appeal of a lower court’s decision favoring the National Marine Fisheries Service (NMFS). The victory caps a lengthy battle between the MLA and the federal agency over NMFS’s 2021 Biological Opinion and 10-year right whale conservation plan.
As a result of MLA’s extraordinary court victory, Maine lobstermen will continue to fish under the current whale rules through 2028. During this time, Judge Boasberg will require NMFS to go back to the drawing board to develop and implement a new Whale Rule and Biological Opinion which can no longer use worst-case scenarios and pessimistic assumptions as the basis for it whale conservation regulations. The Biological Opinion, along with its 98% risk reduction, is no longer valid.
CJ Jones is a 10-year-old lobsterman who fishes out of Stonington. CJ goes fishing every chance he gets with his father and stepfather. His future looks a little brighter due to the success of the MLA's appeal. Photo by A. Oliver.
“When the MLA made the decision to sue the federal government, we knew it wouldn’t be easy, but we refused to go down without a fight,” said MLA policy director Patrice McCarron. “The decision by the U.S. Court of Appeals is an overwhelming victory for lobstering families and the communities that rely on this industry, and it reaffirms what the MLA has been saying all along — the federal government does not have a blank check to use ‘worst case scenarios’ and disregard actual data in its regulation of the Maine lobster fishery.”
In September 2021, the MLA sued NMFS, contending that its new Biological Opinion contained major scientific deficiencies that led to an overly aggressive target of a 98% reduction in risk posed by the lobster fishery. NMFS’s Biological Opinion did not address the disproportionate harm to right whales occurring in Canada, vessel strikes in U.S. waters, or natural mortality of right whales. The MLA argued that NMFS failed to rely on the best scientific information and account for the positive impact of conservation measures already adopted by the Maine lobster fishery, then designed a plan aimed at curing unrealistic “worst-case scenarios.”
Chipman Family, Milbridge. C.Clegg photo.
In September 2022, Judge Boasberg ruled against the MLA in an opinion that deferred to NMFS on all counts without disputing the validity of the MLA’s concerns. As a result of a separate ruling by Judge Boasberg in the case filed by environmental groups, NMFS sped up implementation of its 10-year right whale conservation plan. The day after Judge Boasberg’s ruling, NMFS launched its rulemaking process to require the lobster fishery and every other fixed gear fishery from Maine to Florida to reduce estimated risk to right whales by 90% or the federal lobster fishery could be shut down.
T.Rodgers. C.Clegg photo.
The MLA board of directors voted to immediately appeal the decision and hired renowned appellate attorney, Paul Clement, to do so. The Appeals court promptly granted an expedited appeal schedule which moved the case before the panel of three judges this spring.
In its ruling, the Appeals Court wrote: “In this case, we decide whether, in a biological opinion, the Service must, or even may, when faced with uncertainty, give the “benefit of the doubt” to an endangered species by relying upon worst-case scenarios or pessimistic assumptions. We hold it may not.” The court continued, “The ESA and the implementing regulations call for an empirical judgment about what is “likely.” The Service’s role as an expert is undermined, not furthered, when it distorts that scientific judgment by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.”
C.Clegg photo.
As a result of this decision, NMFS’s Biological Opinion is no longer in effect. NMFS will have to prepare a new Biological Opinion that complies with the ESA and the court’s opinion. The lobster fishery can continue to operate because the federal Omnibus legislation signed into law in December 2022 deemed the fishery to be in compliance with the ESA and Marine Mammal Protection Act through 2028. The May 2022 Final Rule is also sent back to NMFS to be revised but remains in effect in the meantime.
“Today’s decision vindicates what the Maine lobster fishery, and the countless communities that rely on it, knew all along — that their practices support the conservation of the gulf ecosystem for generations to come,” Governor Janet Mills and the state’s Congressional delegation stated in response to the ruling. They note that the court acknowledged that NOAA’s flawed use of the data has resulted in unfairly targeting Maine’s fishery.
C,Clegg photo.
“Maine lobstermen were adamant that they were not killing right whales so MLA dug into the data to understand why NMFS was demanding such extreme action. The data are clear — there has never been a documented right whale death in Maine lobster gear,” explained McCarron. “Everyone in the system dismissed our concerns. But we knew NMFS was wrong and we knew we had to had to sue.”
“This victory belongs to Maine lobstermen and community supporters. No one believed we could take on the federal government and deep pocketed environmental groups. MLA’s grassroots effort has resulted in relief from both Congress and the courts. It is truly incredible,” McCarron said.
WHAT DOES THIS MEAN FOR MAINE LOBSTERMEN?
Maine lobstermen must continue to fish under the current whale rules. The most recent trawling up, weak points, gear marking and LMA 1 Restricted Area remain in place.
NMFS will be ordered by the Court to develop and implement a new Biological Opinion and Final Whale Rule by the end of 2028.
NMFS can no longer skew the science against the Maine lobster fishery by using worst-case scenarios and pessimistic assumptions as the basis for its whale conservation regulations.
Click here for a timeline of events leading to this historic victory!
“Never doubt that a small group of thoughtful committed individuals can change the world. Indeed, it’s the only thing that ever has.” - Margaret Mead